The road district here in question is composed of two thousand nine hundred fifty acres of land through which the appellant's railroad runs; it owning fifty-seven and seventy-nine hundredths acres of the land composing the district. There were eighteen qualified electors residing in the district, twenty per cent of whom filed a petition with the board of supervisors under section 2, chapter 277, Laws of 1920, praying that the territory therein described be permitted to come under the provisions of chapter 277, Laws of 1920, and that the board submit to the electors of the proposed district the question of the issuance of bonds of the district for the purpose of obtaining money thereon for the maintenance *Page 563 of public roads therein. This election resulted in favor of the issuance of the bonds, and the board of supervisors thereafter proceeded in accordance with the provisions of the statute.
The injunction here sued out by the appellant is to restrain the sheriff from collecting taxes on the appellant's property levied by the board of supervisors on the property in the district as described in the petition praying for the creation thereof, and among the questions here presented are: Was the district as originally created valid? And, if that question should be answered in the negative, then was the creation of the district validated by the two statutes thereafter passed by the legislature for that purpose?
Section 2, chapter 277, Laws of 1920, makes it mandatory on boards of supervisors to create a road district in accordance with the prayer of a petition therefor, and to issue the bonds of the district for the purpose of maintaining roads therein, provided a majority of the qualified electors therein shall assent thereto in an election held for that purpose. The board of supervisors is without power to decline to act on the petition when signed by twenty per cent of the qualified electors of the territory of the proposed district, and in Bryant v. YalobushaCounty, 133 Miss. 714, 98 So. 148, it was held that the board is without power to create a district with territory different from that described in the petition. The statute is plain and unambiguous, and I am at a loss to see how it can be otherwise construed. At all events no discretion in creating the district was exercised by the board of supervisors. It acted purely in a ministerial capacity, and confined itself "solely to carrying out the will of the petitioners."
A local improvement district, as the one here in question, may be created by a legislative body having full power over the subject without an opportunity being given to the owners of land therein to protest against *Page 564 the creation of the district. Under section 170 of the state Constitution, the legislature may authorize boards of supervisors to create a road district without giving the landowners therein an opportunity to be heard in opposition thereto, provided such boards are permitted to exercise full legislative discretion in creating the districts. But where an improvement district is created by an administrative board, to which the power so to do has been legally delegated, which has not the right to exercise its own discretion in creating the district, but must create the district, if at all, in accordance with a prayer of a petition therefor, all landowners in the district have the right to be heard in opposition thereto, and to deprive them of that right would be to take their property without due process of law.Browning v. Hooper, 269 U.S. 396, 46 S. Ct. 141, 70 L. Ed. 330. Such was the case here, and consequently the original creation of the district was a nullity.
The validating statutes can breathe no life into the district. Such statutes may cure a defectively created improvement district, provided the district was created in a manner which the legislature in the first instance could have authorized. Such is not the case here, for the legislature was without power to have authorized the board of supervisors in the first instance to have created this road district in the manner that it was created. No legislative body exercising full discretion in the matter has here acted, but the district was arbitrarily created in accordance with the wishes of a portion only of the landowners of the district.
There is another reason why chapter 1080 of the Laws of 1926 should not be upheld as a validating statute. It is beyond question a local and special statute relating to the "laying out, opening, altering, and working roads and highways," and therefore violates paragraph (l), section 90 of the state Constitution. Chapter 278, Laws of 1926, may not violate section 90 of the Constitution, *Page 565 but as to that I am not clear, and will express no opinion thereon.
Neither of these statutes can be upheld on the theory that by them the legislature itself created this road district, for to so hold would bring chapter 1080, Laws of 1926, within the prohibition of section 90 of the state Constitution, and both of them within the prohibition of section 170 of the state Constitution, under which the legislature is without power to create a special road district of the character of the one here in question, but can only regulate the manner in which such districts may be created by boards of supervisors. Moreover, to apply these statutes here as a legislative creation of the district would give them a retroactive effect, and I doubt the legislature's power to give them such an effect.
I think the case is controlled by Browning v. Hooper,supra, and that the judgment of the court below should be reversed.